Study On The Objection Lawsuit Of The Third Party

As an important part of the civil execution relief system, the objection lawsuit of the third party is purposed to eliminate the compulsory execution on the subject matter of enforcement, and it has independent status and procedural value in execution relief system. The modification of Civil Procedural Law in 2007 symbolized the establishment of the objection lawsuit of the third party in China, then the consequent legislation and judicial interpretation are continually making refinement and improvement on this system, in order to further direct judicial practice. However, our Chinese legislation on objection lawsuit of the third party started late with many legislative concept and system design immature, and some ideas like object of litigation, nature of action, res judicata, etc. embodied in such lawsuit are blurry themselves and are interlacing each other, inevitably resulting in problems like legislation simple and crude, judicial practice confused. Based on the preceding facts, by means of discussing certain theoretical problems and current situation of legislation and judicial practice of the objection lawsuit, this article is aimed at pointing out some problems existing in this lawsuit enforcement, analyze them and then put forward some relevant immature suggestions.This article is divided into four parts:Part one first studies the fundamental problems of objection lawsuit of the third party, like its definition and nature, theoretical basis, and distinction between relative concepts; then indicates that such lawsuit is based on the theory of abstract compulsory execution claims, and is aimed at requesting the court a stay of execution, thus making it a special and independent relief system in execution phase. Part one lays foundation for the later discussion.Part two relates to the compare between our system and that of the foreign and the Taiwan area. It tells us that our system erected and evolves upon transplanting the foreign legislation, and it complies with international general practice; among which the concept of “separation of judicial and executive branches” in Taiwan law, and the idea of “to one’s best dissolving a one-off dispute” in England and Japan law, all pose themselves as good samples worth our assimilation and reference.Part three analyzes the current situation of legislation and judicial practice of our system, then puts forward main problems existing nowadays as below: the blurry positioning of this lawsuit’s nature, the confused handling of the issues on determining ownership of the subject matter during the execution course, the excessively unspecific stipulation on objection reasons, the inexplicit regulation on the judge tribunal, the unnecessary layout of the debtor’s litigation status, the discrepant expression of the text of adjudicate.Part four is the key part of this paper. It first specially expounds the fundamental and overall question of the nature of the objection lawsuit of the third party, and finally positions it as an action of formation in procedural law; then it directs at different conditions about the relation between such lawsuit and the issues on determining ownership of the subject matter during the execution course, and propounds respective pointed suggestions; after that it makes necessary statements on dissent reasons, judge tribunal, the debtor’s litigation status and the main text of adjudicate with respective settlement attached to each problem. I hope this discussion can make a humble contribution to the improvement of our system.